Is the Trinity Lutheran Case About Religious Liberty?
It makes sense for sincere conservatives in the United States to be concerned with maintaining respect for the moral premises of our nation’s constitutional self-government, as set forth in the American Declaration of Independence. Most expressed satisfaction with President Trump’s decisions to nominate Neil Gorsuch to fill the SCOTUS vacancy created by Justice Scalia’s untimely death. They pushed for, and applauded, the U.S. Senate’s vote to alter its rules in order approve the nomination, despite opposition from most of the Democrats in that body.
This appointment stands as the most significant (some would say the only) official action President Trump has taken that seems unequivocally to satisfy one of candidate Trump’s key campaign promises.Q.E.D. Or so his publicists in the conservative media breathlessly want us to believe.
Of course, given the track record of past supposedly conservative Presidential appointments to the SCOTUS, (as well as Mr. Trump’s past friendship or support for advocates of constitutional corruption like Bill Clinton and Barack Obama), people unwilling simply to suspend their disbelief (including me) watchfully wait upon events.
Last week some of the aforementioned conservative media publicists invited our attention to oral arguments before the SCOTUS in the case of Trinity Lutheran Church of Columbia v. Comer. In that case, a church daycare and preschool facility was denied a State grant subsidizing the installation of rubber safety flooring on their playground. In support of this decision, Missouri State officials relied on language in the Missouri Constitution (Article I, Section 7) providing that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion…and that no preference shall be given nor any discrimination made against any church or sect or creed of religion, or any form of religious faith or worship.”
Travis Weber, a spokesman for the Family Research Council is quoted as saying “After listening to today’s proceedings, I am hopeful, with the recent addition of Justice Gorsuch, that the Court will rule on the side of religious liberty.” But the question Mr. Gorsuch put to the lawyer appearing on behalf of the State Official, dealt with the basis for discriminating against the church, as a church, in withholding the grant. In this case, the discrimination affects a State program justified as a public expenditure because it aims to assure the use of building materials that protect the State’s children from harm.
This is not about the church’s freedom to act according to its conscientious tenets. It’s about the U.S. Constitution’s language declaring that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” This obviously applies to all persons in Missouri, including the children at the Trinity Lutheran Church’s daycare and preschool. A law intended to protect children on playgrounds must offer that protection equally to all children on all the playgrounds in the State.
Of course, the State’s resources are not unlimited. Given that fact, the State may argue, it has to make a judgment which institutions will be given priority. Since the State’s Constitution forbids any direct or indirect use of public funds to aid any “church, sect or denomination of religion”, all religious institutions must be excluded, as a matter of priority, in obedience to that restriction. But how can this be allowed when the self-same law (i.e., the Missouri State Constitution) forbids discrimination against “any church, sect or denomination” in the very same section of the law that requires it? If one can’t discriminate against any, one surely can’t discriminate against all.
Alexander Hamilton touches on the implications of such self-contradiction within the law in Federalist #78, in discussing the “exercise of judicial discretion, in determining between two contradictory laws.” He accurately observes that “In such a case it is the province of the courts to liquidate and fix their meaning and operation.” But in this case, the Court has merely to observe that the Missouri Constitution’s language restricting the use of public funds is self-liquidating, and therefore cannot be applicable, as it requires and forbids discrimination in respect of the self-same entities (any church, sect or religious denomination.)
Given that the U.S. Constitution’s prohibition against denying equal protection is clear and not conflicted, it is a simple matter to conclude that the Supreme Law of the Land, plainly applicable, takes precedence over a provision of a State Constitution that aims to violate that law, and falls short of that aim only because of the incompetent language deployed to achieve it.
That being the case, I wouldn’t be surprised if all the Justices of the Supreme Court uphold the plaintiff’s suit, since all legal support for the State official’s position falls, of itself, away. Unfortunately, in that event, all Justice Gorsuch’s vote will prove is that he knows how to read Missouri’s Constitution, and recognize a self-defeated provision of law when he sees it. But does that mean he will read and apply provisions of the U.S. Constitution like the Ninth Amendment, that plainly require respect for the antecedent rights of the people, which decisions like Roe and Obergefell ignore? Given his willingness to assert that both those decisions are established precedent and “settled law”, I would say the jury go on looking for clear evidence that this is so.
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